EXHIBIT 10.129
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT FACILITY
AGREEMENT is made and entered into as of this 21st day of January, 2003 by and
among FINOVA Capital Corporation, a Delaware corporation ("Lender"), Bluegreen
Corporation, a Massachusetts corporation ("Parent"), Bluegreen Southwest One,
L.P., a Delaware limited partnership ("Bluegreen One") and Bluegreen Southwest
Land, Inc., a Delaware corporation ("Bluegreen Land"). (Parent, Bluegreen One
and Bluegreen Land are sometimes collectively referred to as the "Obligors" and
individually as an "Obligor").
RECITALS
A. Lender and Parent are parties to a Second Amended and Restated
Credit Facility Agreement dated as of September 14, 1999 (the "Credit Facility
Agreement").
B. Bluegreen One obtained various loans from the Lender pursuant to
the Credit Facility Agreement and such loans were guaranteed by Parent and
Bluegreen Land. One or more of the loans (hereinafter the "BSO Loans") made to
Bluegreen One are presently outstanding.
C. The Credit Facility Agreement contemplates that the proceeds of
the Loan may be available for use by a Subsidiary of Parent. Bluegreen Vacations
Unlimited, Inc., a Florida corporation ("BVU") is a Subsidiary of Bluegreen and
desires to use a portion of the proceeds of the Loan for the purposes of
enabling BVU to purchase certain timeshare inventory from Casa del Mar Joint
Venture (the "CDM Acquisition"). As a result thereof, the Credit Facility
Agreement must be amended in certain respects.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized
terms used herein shall have the same meaning as set forth in the Credit
Facility Agreement, the specific provisions of which are incorporated herein by
reference as if fully set forth herein. However, notwithstanding the foregoing,
the following term shall have meaning set forth below and notwithstanding any
contrary definition contained in the Credit Facility Agreement:
1.1 "Loan Collateral": With respect to a Loan, the Real
Property which is the subject of such Loan, the Personal Property related
thereto,
and the other property now or hereafter as security for the Performance of
the Loan Obligations.
1.2 "Maximum Credit Facility Amount": Thirty Five Million
Dollars ($35,000,000).
2. Amendments.
2.1 Borrowing Term. Although the Borrowing Term expired on
March 31, 2002, the Borrowing Term shall be opened up through January 28,
2003 for the limited purpose of permitting BVU to obtain one advance of
the Loan for the purposes of financing the CDM Acquisition. For all other
purposes, the Borrowing Term expired on March 31, 2002.
2.2 Notices: Section 8.5 of the Credit Facility Agreement
shall be amended to provide that all notices sent to Lender shall be sent
to Lender at the following address:
FINOVA Capital Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President Resort Finance
Telecopy: 000-000-0000
Section 8.5 of the Credit Facility Agreement shall be further amended
to provide that all notices sent to Parent for any Borrower shall be
sent to such at the following address:
Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Director, Corporate Legal Affairs
Telecopy: 000-000-0000
(provided that notice to any Borrower which is a
subsidiary shall be addressed to it c/o Parent)
2.3 Effect as an Amendment. Other than as specifically set
forth in this Amendment No. 1, the remaining terms of the Credit Facility
Agreement and the other Loan Documents shall remain in full force and
effect and shall remain unaffected and unchanged except as specifically
amended hereby. In the event of any conflict between the terms and
conditions of this Amendment No. 1 and any of the other Loan Documents,
the provisions of this Amendment No. 1 shall control. Each reference in
the Credit Facility Agreement to "this Agreement" shall be deemed to refer
to the Credit Facility Agreement as
amended through and including this Amendment No. 1, and each reference in
any other Loan Document to the Credit Facility Agreement shall mean the
Credit Facility Agreement as amended through and including this Amendment
No. 1.
3. Miscellaneous.
3.1 No Waiver. This Amendment No. 1 in no way acts as a waiver
by Lender of any breach, default, Event of Default or Incipient Default
(whether known or unknown to Lender) or as a release or relinquishment of
any of the liens, security interests, rights or remedies securing payment
and performance of the Loan Obligations or the enforcement thereof.
Nothing contained in this Amendment No. 1 is intended to or shall be
construed as relieving any person or entity, whether a party to this
Amendment No. 1 or not, of any of such person's or entity's obligations to
Lender.
3.2 Confirmation of Security Interests. Obligors hereby
confirm and agree that Lender's security interest in all the Loan
Collateral owned by Obligors or otherwise previously pledged to Lender
shall continue to secure the payment of any and all amounts due Lender and
the Performance of any and all of Loan Obligations owed to Lender pursuant
to the Credit Facility Agreement and any of the Loan Documents, as the
same have been or may be amended from time to time.
3.3 Representations, Acknowledgments, and Agreements of
Obligors. As material inducements to Lender to enter into this First
Amendment, and acknowledging Lender's reliance upon the truth and accuracy
thereof, Obligors warrant and represent that:
3.3.1 The recitals set forth above are true and correct.
3.3.2 The BSO Loan is just and owing.
3.3.3 The obligation of Bluegreen One to repay the BSO
Loan, together the obligations of Parent and Bluegreen Land to
guaranty the BSO Loan, is absolute and unconditional, and there
exists no right of set-off or recoupment, counterclaim or defense of
any nature whatsoever to payment and Performance of the Loan
Obligations arising out of the BSO Loan.
3.3.4 As of the date hereof, no Obligor is the subject
of a pending bankruptcy proceeding, and Obligors are not aware of
any threatened bankruptcy proceeding against them, nor are they
presently contemplating filing such a proceeding.
3.3.5 There are no proceedings pending, threatened
against, or affecting any Obligor in any court, before any
governmental
authority, or arbitration board or tribunal which may now or in the
future materially adversely affect any Obligor, except as have
previously been disclosed to Lender in writing in accordance with
the Loan Documents.
3.3.6 All of the representations and warranties of the
Obligors contained in the Credit Facility Agreement and the other
Loan Documents (as the same may have been modified or supplemented
by, and giving effect to, the reports and disclosures provided to
Lender by Obligors subsequent to the date of the Credit Facility
Agreement), are true and correct, in all material respects, as of
the date hereof and, as so modified or supplemented, are hereby
reaffirmed and ratified.
3.3.7 This Amendment No. 1 and the documents and
instruments executed in connection herewith have been authorized by
all necessary action and, when executed, will be the legal, valid
and binding obligations of the Obligors, enforceable against the
Obligors in accordance their respective terms.
3.3.8 Obligor's execution, delivery and performance of
this Amendment No. 1 do not and will not (i) violate any law, rule,
regulation or court order to which any Obligor is subject; (ii)
conflict with or result in a breach of any Obligor's organizational
documents or any agreement or instrument to which any Obligor is
party or by which it or its properties are bound, or (iii) result in
the creation or imposition of any lien, security interest or
encumbrance on any property of an Obligor, whether now owned or
hereafter acquired, other than liens in favor of Lender.
3.3.9 Obligors acknowledge that they have consulted with
counsel and with such other experts and advisors as it has deemed
necessary in connection with the negotiation, execution and delivery
of this First Amendment. This Amendment No. 1 shall be construed
without regard to any presumption or rule requiring that it be
construed against the party causing this Amendment No. 1 or any part
hereof to be drafted.
4. Release of all Claims. Obligors hereby release, remise, acquit
and forever discharge Lender and Lender's employees, agents, representatives,
consultants, attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing hereinafter
called the "Released Parties"), from any and all actions and causes of action,
judgments, executions, suits, debts, claims, demands, liabilities, obligations,
damages and expenses of any and every character, known or unknown, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, whether heretofore
or hereafter arising, for or because of any matter or things done, omitted or
suffered to be done by any of the Released Parties prior to and including the
date and execution hereof, and in any way directly or indirectly arising out of
or in any way connected to this Amendment No. 1, the Credit Facility Agreement
and the other Loan Documents (all of the foregoing hereinafter called the
"Released Matters"); provided, however, that the foregoing release shall not
apply to discharge Lender from any obligations which are expressly imposed upon
Lender pursuant to the terms of this
Amendment No. 1, the Credit Facility Agreement, or any of the other Loan
Documents, as modified through the date hereof. Obligors acknowledge that the
agreements in this paragraph are intended to be in full satisfaction of all or
any alleged injuries or damages arising in connection with the Released Matters.
Obligors represent and warrant to Lender that they have not purported to
transfer, assign or otherwise convey any right, title or interest of Obligors in
any Released Matter to any other person or entity and that the foregoing
constitutes a full and complete release of all Released Matters.
5. Payment of Costs and Expenses. Obligors agree to pay to Lender at
closing all costs and expenses, including but not limited to reasonable
attorneys' fees and recording costs, incurred by Lender in connection with the
preparation and execution of this Amendment No. 1, the agreements pertaining to
the Loan to be made to BVU and the documents prepared or executed in connection
herewith or thereafter.
6. CHOICE OF LAW. THIS AMENDMENT NO. 1 AND ANY DOCUMENTS EXECUTED
PURSUANT HERETO, SHALL BE PERFORMED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ARIZONA.
7. Entire Agreement. The Loan Documents as modified by this
Amendment No. 1 and the documents executed pursuant hereto embody the entire
agreement and understanding between Obligors and Lender, and supersede all prior
agreements and understandings between said parties relating to the subject
matter thereof. The parties each warrant to the other that no promise,
inducement, representation, or agreement that has not been expressed herein or
is not otherwise set forth in the Loan Documents has been made to them in
connection with the deliberations or negotiations leading up to the execution of
this Amendment No. 1.
8. Headings. The headings used in this Amendment No. 1 are used
solely for convenience of reference, and do not constitute substantive
provisions to be considered in construing the terms hereof.
9. Counterparts; Telecopy Execution. This Amendment No. 1 may be
executed in any number of separate counterparts, each of which, when taken
together, shall constitute one and the same agreement, admissible into evidence,
notwithstanding the fact that all parties have not signed the same counterpart.
Delivery of an executed counterpart of this Amendment No. 1 by telefacsimile
shall be equally as effective as delivery of a manually executed counterpart of
this Amendment No. 1. Any party delivering an executed counterpart of this
Amendment No. 1 by telefacsimile shall also deliver a manually executed
counterpart of this Amendment No. 1, but the failure to deliver a manually
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Amendment No. 1.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, these presents are executed as of the date first
indicated above.
FINOVA Capital Corporation, a Delaware
corporation
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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Bluegreen Corporation, a Massachusetts
corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
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Title: Treasurer
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Bluegreen Southwest One, L.P., a Delaware
limited partnership
By: Bluegreen Southwest Land, Inc., a
Delaware corporation, its general
partner
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------
Title: Treasurer
----------------------------------
Bluegreen Southwest Land, Inc., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
--------------------------------------
Title: Treasurer
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